Written evidence from Mission and Public Affairs Council

Introduction

What is the Mission and Public Affairs Council?

  1. The Mission & Public Affairs Council (MPAC) of the Church of England is the body responsible for overseeing research and comment on social and political issues on behalf of the Church. The Council comprises a representative group of bishops, clergy and lay people with interest and expertise in the relevant areas, and reports to the General Synod through the Archbishops’ Council.

Why are we submitting this evidence?

  1. The Church of England is one of the largest grassroots organisations in the country, with a presence in every community. Being able to speak from the position of Parliamentarians, educators, as well as parishioners provides an opportunity for a fully holistic response.

 

  1. In February 2019 the General Synod of the Church of England debated a report GS 2163A on legal aid reform. The report was debated at length by bishops, clergy and laity, drawing on lived experience from practitioners on the ground and the expertise of legal professionals within the Church. The Synod then voted unanimously in support of the following resolution:

That this Synod, mindful that a justice system should be open and free from barriers of any kind, and also provide easy access to enable the most vulnerable and disadvantaged people in our society to seek professional help in bringing their claims before our courts and tribunals:

(a) recognise our legal aid system as an essential public service and fully endorse its preservation for the benefit of the nation;

(b) welcome the reports by Amnesty International and the Bach Commission about the impact of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and note both their findings about its impact on the most vulnerable and disadvantaged groups in our society and their recommendations for reform of the current system;

and (c) call on Her Majesty's Government to respond positively to these reports and explore ways of alleviating the impact that the 2012 Act has had on these groups.

  1. This evidence draws on the submissions to that synod debate and from the experience of churches dealing with the consequences of the changes to legal aid.

Executive summary

  1. Universal access to justice is a necessary underpinning feature of the rule of law. Christian theology, drawing upon the Old and New Testaments, demonstrates a consistent concern for the ability of society’s poorest and most vulnerable to be able to hold the powerful to account and receive justice. The law must demonstrably be impartial regardless of wealth, which in turn requires even the poorest and most marginalised to be able to access quality legal advice and representation.
  2. A string of reports from highly respected professional bodies, including Amnesty International, the Bach Commission, the JCHR and the Law Society have consistently shown that the LASPO reforms, while effective in saving money, have done so largely at the expense of access to justice for some of the most vulnerable.
  3. A combination of advice deserts, cuts to particular areas of law and the difficulty in securing legal aid has led to civil society bodies, including churches, having to take on an increased load in not only pastorally supporting those who have been affected by the changes, but also in providing pop up pro bono legal advice clinics.
  4. Valuable as these are (and they are growing phenomenon) they are no true substitute for the level of service required. In particular, on issues around welfare, family, immigration and housing, churches and other charitable groups are struggling to provide adequate support to the vulnerable.
  5. The consequences of a lack of legal aid are not only felt in the undermining of the rule of law but also have significant social and psychological costs. People who find themselves priced out or unable to access quality legal services suffer significant distress and require ongoing pastoral support. The evidence of clergy from across the country is that increasing numbers of vulnerable people suffer significantly as a result of the LASPO reforms. These include families who, unable to secure coroner inquests or support with complex family law cases, often find conflicts and family breakdown to become exacerbated.
  6. The strain on access to justice risks undermining confidence in the entire legal system (and so the rule of law itself). If people are unable to secure the representation they need due to financial or other vulnerabilities it opens the system to miscarriages of justice and abuse of the vulnerable by the powerful.  

The impact of LASPO on access to justice

  1. The rule of law and universal access to justice are essential elements to Christian teaching on a just society. They are mutually dependent concepts, without universal access to justice the rule of law is an empty concept. Without the ability to have access to justice, rights cannot be exercised, obligations enforced and either institutions or individuals held to account. In short, there is no rule of law without consistent and universal access to justice.
  2. Protecting this rule of law and access to justice requires an active advocacy for those who would otherwise be denied a voice (‘Speak up for those who cannot speak for themselves, for the rights of all who are destitute. Speak up and judge fairly; defend the rights of the poor and needy.’ (Proverbs 31:8-9)). The measure of whether access to justice is adequate is the question of whether the vulnerable and marginalised are adequately protected. The consequence of LASPO has been felt directly by vulnerable and marginalised groups. The February 2020 General Synod noted the findings of the 2016 report by Amnesty International and the 2017 Bach Commission, in particular the impact on the most vulnerable and disadvantaged groups in our society.
  3. Amnesty International’s Cuts That Hurt report warned of an emerging ‘two-tier justice system: open to those who can afford it, but, increasingly closed to the poorest, most vulnerable and most in need of its protection.’[1] It argued that the effects had been particularly significant on children and vulnerable young people, migrants and refugees and people with vulnerabilities including mental health problems.
  4. These findings are replicated in other reports. These include highly critical reports from the Equalities and Human Rights Commission in September 2018[2] and from the Law Society in June 2017.[3] The parliamentary Joint Committee on Human Rights also raised several serious concerns along similar lines in a July 2018 report.[4] They also tally with the experience of churches providing both legal advice and pastoral support to those struggling with the consequences of an absence of legal support (see below).
  5. A number of these concerns have been recognised by the government in the Ministry of Justice’s ‘Post-Implementation Review of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO)’ and ‘Legal Support Action Plan’ which were both published in February 2019. That review acknowledged several of the criticisms contained in the above reports, including fears over ‘advice deserts’, particularly in rural areas, the rise of self-representation in courts and concerns over some costs and fee thresholds. We welcome the recognition of those issues and in particular the changes to support victims of domestic abuse and the reinstatement of direct advice in debt, discrimination and special educational needs (SEN). We continue to fear that, welcome as these changes have been, they fail to account for the biggest areas of concern.
  6. The Church of England has consistently warned of the emerging issues in this area. This has included, among others, responses to consultations from the Ministry of Justice and to the Joint Committee on Human Rights in 2013, a series of interventions from Lords Spirtiual in the House of Lords. In 2015, the Bishop of Rochester signed a joint statement with other Christian denominations highlighting concerns and laying out the Christian commitment to access to justice in a foreword to a report from the Christian think tank Theos.[5]

 

Churches filling the gaps, and the COVID 19 context

  1. The Law Society has identified that one of the consequences of the LASPO reforms has been a growth of ‘legal aid deserts’ in which many poorer people cannot access the face to face legal advice to which they are legally entitled. They have produced data in 2020 which illustrates that “78% of local authorities in England and Wales do not have a single community care legal aid provider”.[6] This followed 2019 data which showed that over half of local authorities provide no housing legal aid services.
  2. In the absence of adequate provision voluntary civil society bodies have been forced to fill the gaps. One innovation has been the emergence of pop up legal services in churches. In one London-based pop-up they are now dealing with more than 800 cases a year, including 119 on immigration law alone, and 66 on family law.
  3. Another was established in London explicitly in response to legal aid cuts in 2014 and has already supported more than 2000 clients. Many others have been developed in partnership with local legal firms or law schools and use church premises. We have, therefore, seen first-hand a growing demand from people struggling to find any other source of legal advice.
  4. COVID 19 has made the provision of these services more difficult. Free drop-in clinics were paused completely during lockdown and though they have restarted since, are hard to facilitate safely. Pop up clinics have had to move to an appointment system, which has added an administrative burden (taking up additional volunteer time), put up a barrier to people seeking help and disrupted the face to face confidentiality on which these services rely.
  5. Despite some excellent efforts these pop up clinics have also proven difficult to establish at scale (the same is also reported to be true of pro bono secular clinics). They can be hugely valuable in providing assistance but there are several areas in which they are never going to be able to replicate professional legal advice. Most notably, complications over immigration law (particularly where human rights issues are concerned), family court proceedings in which complex cases may be beyond the understanding of those who are not legal professionals and beyond the financial means of poorer people, and personal injury cases, were all identified as areas in which pop up clinics were struggling to support people.
  6. More significantly, while the Church is always committed to playing a role in supporting the needs of the vulnerable and happy to work to provide services, when it comes to many of these cases relying on charity to provide people with much needed advice on their basic rights is demonstrably not an effective solution. Too many of society’s most vulnerable are reliant on civil society bodies, including churches, for advice which falls short of the level of support that they require for full access to justice.

Pastoral and moral consequences of LASPO reforms

  1. Over and above providing legal advice the greater consequence as seen by churches has been the pastoral consequences of changes to legal aid. The many examples quoted by clergy in the course of debates on legal aid included having to support grieving parents unable to secure a coroner inquest, trying to support migrants who have played a full part in the life of the community but find themselves unable to access any support to deal with complex issues over visas, and family law cases that are far more complex than the individuals involved can deal with.
  2. The testimony from participants in the General Synod debate overwhelmingly pointed to a significant increase in the time that clergy and volunteers were spending supporting people struggling with the consequences of being unable to access legal aid. The effect of being unable to secure the necessary professional advice can be deeply traumatic, all the more so when the cases in question involve already fraught situations around family breakdown (according to the 2017 Church In Action survey 86% of Church of England churches are directly involved in working on family breakdown) or as fundamental as visa questions which could lead to whole families being uprooted and having to leave the country.
  3. A similar trend has been witnessed in the number of migrants, including asylum seekers, increasing reliant on faith groups to support them in fighting often complex and distressing battles over their migration status. These areas of law are highly complex and also have significant psychological and health effects in terms of the stress on migrants and their families. The lack of adequate support networks leaves faith groups and charities supporting a highly vulnerable group of people.
  4. Lack of legal support is not just a matter of representation in court, but also has human, psychological and social costs. These are ultimately borne in part by churches and other civil society groups who support these people, but most keenly by vulnerable and marginalised people who can no longer receive the legal assistance that they need to exercise their rights and hold the powerful to account.
  5. This in turn undermines a stated purpose of the LASPO reforms in encouraging confidence in the legal system by preventing frivolous or unnecessary cases reaching court. While it is true that before the pandemic cases reaching court in many of areas had fallen over the past few years. the lack of legal aid has led to too many being poorly represented or being forced to represent themselves in court. Far from helping this often leads to perceptions of an affront to justice, and fears over miscarriages of justice. This poses the danger of a breakdown in confidence in the legal system to provide resolution. Far from encouraging mediation this can exacerbate intra-family conflicts and perpetuate abuses against those unable to secure adequate legal representation.  

[1] Amnesty International Cuts That Hurt October 2016

[2] Organ J and Sigafoos J ‘The impact of LASPO on routes to justice’ September 2018, EHRC.

[3] The Law Society  Access Denied?: LASPO four years on: a Law Society review June 2017

[4] Joint Committee on Human Rights ‘Enforcing human rights: Tenth Report of Session 2017–19’ July 2018 https://publications.parliament.uk/pa/jt201719/jtselect/jtrights/669/66902.htm

[5] Caplen A. and Mcllroy D. (2015) “Speaking Up”: Defending and Delivering Access to Justice. Theos. p6.

[6] See https://www.lawsociety.org.uk/campaigns/legal-aid-deserts